International Cat Speculators Since 2006

Archive for the ‘Section 59’ Category

A few months ago, an anti-smacker made some comments on this blog. Pondering his comments, something was bothering me about his view of the Riding crop case.

The question that the anti-smackers have always asked is effectively “how do guilty people get called innocent” – that is, “how do child abusers get away with it”. The answer was “because the law is bad”.

But last one night I realised that the flip side is actually a much more serious question: why are people who were declared innocent get called guilty? What basis has the anti-smacking lobby used to question verdicts delivered after careful deliberation of all the evidence?

So I did some research. And I believe I’ve discovered something very interesting about the riding crop case.

The boy was asked to assist his stepfather to get some firewood. He refused.Apparently he did not respond well to the man’s encouragement to help. Instead he picked up a baseball bat and swung it full force at his stepdad’s head screaming that he would give him permanent head injuries. Fortunately the man was able to block the blow and disarm the boy. If he had not seen the baseball bat coming, the consequences could have been dire, as the impact to his head could have seriously maimed or even killed the man because he has a closed head injury from an accident some years ago.

So his mother disciplined hom with a riding crop because she couldn’t find anything else. Not a horse whip. A horse whip conjures up visions of a long stock type whip, where a riding crop is a small item, about 18 inches long and is designed to give a short sharp sting with no seen physical effects.

The discipline was controlled, over with very quickly and was very effective, according to the mother. Afterwards the boy gave his mother a hug and apologised for swinging the baseball bat and threatening his stepfather.

The special education services (SES) worke at the boy’s school noticed a change in the boys behaviour at school and asked why there was such a positive change His mother told him about the disciplining. The SES worker told the boys mother that she was not allowed to discipline in this manner, that it was against the law even to smack – which of course is rubbish.

Readers interested can go read the whole story, should they wish.

But here’s the point:

The boy was accused of little short of attempted murder

The boy was punished with an instrument which is basically the same as the time-honored cane. (Actually I can testify from personal experience that the cane hurts more.)

This worked, where nothing else had

From these facts, it’s not hard to see how the jury found the mother not guilty. It’s also not hard to see how easy it was to whip up such hysteria about the case.

But let’s put that aside, and assume that this mother did not, as Judge Holden tells us, use reasonable force (in the circumstances).

(If you read about this case, the police made no reply to the defense, so there is an argument to be made that this case fell through by a poor prosecution.)

Given that you have two options:

The jury got it wrong.

The jury got it right.

If the jury got it wrong, and the force was in fact unreasonable, then there is no need to change the law, and this case is not a demonstration of anything other than police incompetence.

If the jury got it right then we have a case of force that was “reasonable in the circumstances”, yet was also excessive. That is a contradiction in terms*.

It is also the case for the law change to section 59.

In order to “stop abuse” we have declared reasonable actions illegal.

And that nonsense ladies and gentlemen, is now our law.

—————-

*One might ask how the Perfect Parent Lobby coped with such a contradiction. Well, that’s simple: they spoke about “reasonable force” as something that allowed abuse. So people began to think about reasonable force not as force that is reasonable, but like those labels you see in the supermarket that say “Real Juce” – just a label, divorced from it’s meaning.

This is of course, how Judge Holden thinks. He can’t refute the words, so has to reference the case to “prove” the words meant something they never did and never will.

It’s very clear that the smacking law, and the attitude that it has encouraged CYFS to cultivate, are doing serious destruction to some families – destruction far worse than any light smack could ever do.

The lead juror in the child cruelty case said she was “embarrassed to be a New Zealander” because the couple on trial were “good decent parents trying to instil a sense of responsibility”.

But former Green MP Sue Bradford, the law’s architect, said she was ashamed people thought such actions were acceptable. To her they amounted to assault.

The father and his new wife were found not guilty after a trial on 15 charges alleging cruelty against two children from his previous marriage. The children were aged 10 and under at the time.

The couple’s lawyer used Section 59 of the Crimes Act, the amendment championed by Bradford, as a defence.

The case tested the amendment and showed what a jury would allow in terms of “justified force” to prevent or minimise harm, or to stop the child engaging in “offensive or disruptive behaviour”.

“It is probably the worst thing I have ever done to my child, but I grabbed my tie that I wear for church and I tied his wrist to my wrist beside my bed so he couldn’t take off and go and kill himself,” the father told the Sunday Star-Times. “Then he did manage to loosen it, so I did tie it around his neck for only about 30 seconds. I admitted to those things in court, but given the circumstances and what I was trying to achieve – trying to stop him killing himself – I was found not guilty.”

He also gave his son a “number two” haircut to teach him a lesson after a couple of years of stealing from his parents.

There’s a thread at Kiwiblog, with some interesting comments by some on the left. This one in particular is disturbing, as the author (Toad) seems to think it a bad thing that parents have the right to use force at all. (If you disagree with that, I suggest you reply in comments here – but be sure to do so without using force of any kind.)

But really, there’s pretty much zero detail on any of the alleged offending. And a lot of people are jumping to the conclusion that the jury didn’t do it’s job by acquitting. Much of that is being generated by this quote:

Deanne Shilton, the lead juror in the case, contacted the Sunday Star-Times through a third party. She said she was “embarrassed to be a New Zealander” and felt awful for the couple for having to go through the case – particularly the heavily pregnant wife of the father, who was forced to climb several flights of stairs to court cells during any break.

Clearly the jury found the case to have no substance whatsoever, and this was clear from the start.

Bob McCroskrie has some of the background. It sheds light on just how the jury came to that conclusion.

While staying with his mum on holiday, Jack’s 12y/o decided he wanted to stay there instead of at dad’s. The mother told him to ring Whatsup – the youth helpline – and to make claims of smacking and abuse by Jack. This was referred to CYF, and the nightmare began.

Despite testimony and written affidavits in the Family Court covering this period which praised Jack’s parenting skills and supported his application for custody of his children, and despite no other supporting evidence, CYF also took custody of his 6y/o and 1y/o.

Letting a government agency be used by one side in a breakup is not a good look.

There were claims against Jack and his wife Jill of smacking, excessive time out in a cold room (the whole house was cold!), cold showers, giving the 12y/o a #2 haircut (not a shameful cut at all – the school principal testified in court that it was nice), and excessive chores.

I’ll just break in here. So let’s be clear – outside of smacking the abuse consisted of:

Living in a typical cold NZ house

Cold showers (oh, the horror!)

Getting the child to do work around the house

Giving the boy a haircut

One wonders what sort of prosecution would bring up such charges. One can only speculate that they wanted to lose their case.

Jack and Jill were also charged with kidnapping and tying the 12 y/o when preventing him from harming himself and others. The 12y/o had twice recently seriously assaulted Jill including punching her in the stomach when she was pregnant and biting and kicking her to the ground on another occasion, but no action was taken by CYF or the police.

Tying up a child sounds bad, but when the other option is letting him give a pregnant woman a miscarriage (which the SST never mentioned) there’s a clear case to be made for protection of others. Which is, was, and always will be legal.

Jack was also charged with washing the boy’s mouth with soap when he repeatedly swore mother-f**ker and other highly offensive language at the parents. Other attempts to stop this had failed.

Surprisingly, the average kiwis on the jury didn’t think using soap was abuse.

I don’t know if the jury got it right.

But it seems that there is a lot more here than the media are willing to report.

*Actually, there are a few in that file that were not let off by the courts. Also, none have ever (AFAIK) escaped CYFS sanction regardless of court findings.

What the Star Times didn’t say and Sue Bradford doesn’t know, is the child punched the step-mother in the stomach whilst she was pregnant stating he wished the baby would die. On another occasion, we saw photographs of bruising, cuts and abrasions that the son had inflicted on the step-mother – knocking her to the ground. This was her reward for attempting to prevent the child using a bicycle that didn’t belong to him. After hours and hours of searching they finally brought the child home late at night. He then went on to threaten to kill himself and the other children sleeping in the house. Conveniently, none of this is mentioned in the Star Times article – just the desperate attempts by the father to protect his family and the child from himself portrayed in a way that makes him look like a monster – he is far from it.

The Jury found both the father and the step-mother not guilty on all 15 charges presented in less than an hour.

There is only one blogger I know of who has said something that outrageous in response to a well-publicised public referendum where the government position was roundly defeated. I know of only one blogger who has sworn at the public for refusing to submit to an Orwellian redefinition of the word “reasonable”.

I have just two words to say to all of you who voted “no”: F[**]k you.

I know of only one blogger who is prepared to lie about good New Zealanders, and smear reasonable people as deranged, lie about the law and it’s effects, and encouraged our government to resort to the tactics of totalitarian regimes.

That blogger is Idiot Savant, otherwise known as Malcolm Harbrow.

Apparently he was recently nominated for an Amnesty International Aotearoa NZ’s Human Rights Defender Award.

While I’m flattered, its clear from the list that I do not belong on it. The other nominees are doing real work which changes the world for the better. All I do is mouth off on the internet.

Amnesty have seriously screwed up with this one. They’ve failed to do basic research. Simply reading through his blog entries for the past few years would have revealed his anti-democratic hate. Calling for children to be removed from political opponents crosses a line that should never, ever be crossed in a democratic society. It is really only a few steps short of calling for those opponents to be locked up for the “crime” of being opponents. Those sorts of tactics are in fact the exact sort of tactics that Amnesty was setup to expose.

Yes, he does frequently point out issues that need attention. But his response (and lack of any sort of apology or remorse) to the Section 59 referendum was so utterly shameful, that it should disqualify him from any consideration for this sort of award. It’s no good advocating for human rights when they agree with your politics, only to call for political persecution of people who oppose your ideas.

——————

*inflammatory hate speech removed

**inflammatory hateful lies removed – see this post for an explanation of the “15 minutes” claim, which turns out to be the polar opposite of abuse, and rather a call for calm, patient parenting.

Readers can also read by Fear and FallacyThe repression of reason and public good by the antismacking lobby in New Zealand by Michael L Drake. Drake describes his own run in with the authorities, their willingness to ignore the law and criticise his actions without investigation, and carefully examines and discredits a wide range of government actions and research (both domestic and foreign) on the subject.

In fact, his opening statements relate directly to the above.

Totalitarianism replaces the checks and balances of democracy in one of two ways: suddenly by revolution or gradually by stealth. Using false information, character assassination, irrational emotional criticism and unrestrained organs of the state, New Zealand’s smacking-phobes appear set to overthrow centuries of safe, sensible and successful parental nurture by eroding the checks and balances of our social conventions, democratic processes, and justice system. The goal is not just to stop parents smacking – it is to stop all forms of rebuke and shape a society where the state has seized the nurture of children from parents.

It is not that everyone involved deliberately employs misinformation and shame, or understands the ultimate loss of the traditional family to which this leads. Many opponents of smacking appear to be genuinely motivated by a desire to promote good for children. They may repeat and use fallacies and fear in place of reason and democratic process believing what they say is true and what they do is “appropriate”. But no level of motivation can turn nonsense into sense. Fallacies repeated in good faith are nonetheless fallacies, and fear engendered with good intentions is nonetheless fear.

Interesting how the Tea Party gets described by One News as “extremist”, even with more than a quarter of the population supporting them.

Interesting because, I’ve never heard the “Yes Vote” campaign described in those terms in spite of far smaller support (6% of the voting public supported them) and a ridiculously fundamentalist position on child discipline.

However, there is one thing in common. In both cases, the liberal side’s chief strategy has been to lie about the motives of the conservative one.

Family First NZ says that the latest police statistics on the anti-smacking law trivialize the real impact of the anti-smacking law and fail to reflect the widespread confusion over the effect of the law, the impact on parenting and parental authority, the continued opposition to the law, and the ongoing failure to target and tackle actual child abuse.

‘What these figures do show is that almost 350 families have gone through the trauma of an investigation, temporary removal of children, and potential court case for a smack or minor act of physical discipline, and 19 of these families have been taken to court,” says Bob McCoskrie, National Director of Family First NZ. “And this review does not even touch on the huge number of families investigated by CYF, children temporarily removed, and ex-partners using the law to their benefit in custody cases.”

Then there’s the thousands of families who have followed the governments legislative lead and simply stopped caring weather or not they’re raising good citizens, since they ultimately have no power to do anything about it.

Seems that someone just twigged that Nigel Latta tells parents to lock their children in their rooms for timeout.

Which is funny, because it strongly suggests that certain “child advocates” weren’t watching when those comments were broadcast to the nation.

But former Green MP Bradford, whose anti-smacking bill afforded children the same legal protection from assault as adults, warned such actions could have “a lifelong impact” on the locked-up kids.

“Locking children up when you are angry, frustrated or just sad could really damage the children psychologically and cause all sorts of problems later,” Bradford said.

I saw Latta’s reply on Breakfast TV (on Yahoo!Xtra). He explained again that this simply an alternative to sitting there and holding the door shut. Like all good dicipline methods, it only needs to be used a few times then the child learns that they are best to avoid it.

He then turned to Sue Bradford and her claims of “damage”. He pointed out that it’s a large part of his job to read and keep up with the latest research in the field of child rearing, and in doing so he has yet to see a single study that backs up the claims that Sue’s making.

Which should not be suprising, since Ms Bradford is little more than an angry ex-MP with no training whatsoever in the area.

“There have been horror stories in the past from children being locked in small spaces and left as punishment. It is a form of cruelty and mental violence.” Whangarei-based barrister Michael Gardam, convener of the New Zealand Law Society’s youth justice committee, said he was “taken aback” by Latta’s advice.

Mr Mr Gardam also misses the point and attacks a straw man.

I don’t know if it is good advice, personally speaking.” Barnardos’ northern regional manager Glenys Knowles said: “We would encourage parents to pick up the phone, grab hold of some resources and talk to some other parents. But bolts on doors … It is not something that Barnardos would advocate. If parents are struggling they should ask for help.”

Given their previous advice along the same lines, we should not be suprised that Barnardos’ suggestion to deal with a naughty child is to “grab hold of some resources”.

I can just see it now:

Child: No, I won’t stop hitting kitty

Parent: Hm, what would Barnardos advise? I know, I’ll ring them.

[1 weeks later…]

Parent: Ah ha! Now I have resources! Look at these pamphlets Barnardos just sent me, now you really must stop hitting kitty!

Child: <dials telephone>

Parent: What are you doing?

Child: Why do you care?

Parent: I’m your parent. I have resources. You must now obey me.

Child: <to telephone> Hello? Is that CYFS? Yes, my mother beats me. Right now she’s threatening me with a rolled up paper… she’s not allowed to do that, right?

Parent: Ahem, look. Why don’t you go down to the mall with your friends?

Having read the actual Investigate article twice, the cases seem to boil down to the following:

Family first announce that a parent has been prosecuted for smacking.

Latta looks up the case in CYFS files and discovers other accusations. Doesn’t check the court documents, as he considers these to be irrelevant. Declares he has more information than Family first, and that by ommitting the information the family have lied to Family First and by extension, the public.

Ian checks the court records and finds that the “extra” information in fact are false allegations that did not hold up in court. Once these allegations are removed, the case is in fact a prosecution for smacking.

There’s more to it of course, and on reading the article I would withdraw the comment that Latta and his fellow reviewers lied maliciously. It’s instead clear that this a case best filed under “incompetence”.

By taking only the CYFS files and ignoring the end result in the courts, Latta clearly believed in his own mind that there was more to these cases than was in the pubic (wow, I have access to all these cool files – now, who killed JFK?). In fact, there wasn’t. But by believing that and ignoring results to the contrary, he was able to present the cases as “abuse” (i.e. unreasonable force) which would have been prosecuted under the old law.

However, under the old law these cases would never have gone to court, since once the false allegations were removed the remaining actions were legal. In fact even under the current law one of the cases he records as “convicted” wasn’t, and the rest were let off without penalty.

So the moral of the story: you can smack a child lightly, but only if the person making the complaint* doesn’t embellish the story to get the attention of the authorities.

*Usually a child that’s just had their ego taken down a peg or two by the proper application of parental discipline…

However, somewhere between being given those terms of reference and delivering his report, Nigel Latta appears to have done a stunningly good impersonation of Pinocchio being led down the garden path by “Honest John” and “Gideon”, in the form of Broad and Hughes.

Why do I say that? Because the review team appear to have stitched up their own, entirely different definition of what they were going to investigate. As you’ll see from their excuses responses to our special investigation in this issue, both Latta and CYF now say it was never the intention to measure the severity of the initial police or CYF response against what finally happened in court. Heck no! That would be “outrageous” or “unfair” to CYF and police staff, argue Latta and CYF.

No, instead, as far as Broad, Hughes and Latta were concerned, their investigation would look solely at the initial response of the agencies based on the nature of the allegations made to them. The outcome of the cases was deliberately disregarded. If it turned out the evidence didn’t stack up, well, too bad, the public would not find out because the report would say the police and CYF acted “appropriately and proportionately” in the face of serious criminal allegations.

Latta went further at his Beehive news conference, and actually boasted to journalists that Family First’s sources were liars, and that he had reached a considered decision after reviewing all the facts on police and CYF files that none of the parents’ complaints stacked up.

Ah, the arrogance. Read the story and judge for yourself. Metaphorically, the noses of Broad, Hughes and Latta have now grown long enough to provide nesting space for the complete seagull population of the Wellington City Dump, with space for a few hangers on included.

Latta has now told Investigate that minor inconvenient facts, such as parents actually being cleared of committing the serious crimes they were accused of, are “irrelevant” to the integrity of the review.

What was ignored?

· Misdirected itself as to the scope of its review, and as a consequence failed to meet its Terms of Reference.

· Falsely accused one parent of being convicted of punching a child three times in the head when the charge was, in fact, dropped

· When challenged, CYF claimed to Investigate he had “pleaded guilty” to punching the child three times in the head, when court records showed he had not

· Falsely accused a Waimate couple of beating their daughter causing a “tennis ball size bruise”, even though police documents available to the Latta Review (but ignored by them) showed the allegation was utterly unfounded

· Falsely accused a father of punching his 13 year old daughter in the side of the head and beating her repeatedly with a telephone book, despite a court finding no evidence of such attacks.

About this Blog

This Blog is the long time home of a blogger known across the internet as ScrubOne (That's Scrub One not Scru Bone). Where this handle has not been available, he is known as ScrubOneHD (HD for Half Done).

Other bloggers have occasionally been contributors.

ScrubOne confesses to the Christian faith, and conservative politics but does not necessarily blog according to public perception of either.

You can email us tips, comments not intended for publication, offers of money for policy changes, volunteer to join in the fun etc: "scrubone" at google mail (gmail.com)